Robin Turnbull

Following a recent legal challenge by 13 trade unions, it is now illegal for employers to take on agency staff to cover striking workers; indeed, employment agencies will be committing a criminal offence if they supply staff on that basis.

In July 2022, in the context of significant industrial action in the rail sector and other anticipated industrial action, the UK government removed the law that essentially prohibited employers using agency workers to cover the work of staff on strike. The unions argued in court that this was unlawful because the government hadn’t complied with its statutory duty to consult before making the law (ground one), and it had breached its duty, under Article 11 of the European Convention on Human Rights (ECHR), to prevent unlawful interference with the rights of trade unions and their members.

In respect of ground one, the government argued that it had previously consulted on making these changes in 2015 but had decided not to go ahead with them at that time. The High Court said that wasn’t sufficient. It found that the government had decided to plough ahead at ‘exceptional speed’ and without considering the responses to that consultation. It had prepared an impact assessment in 2022 which concluded that the policy change would be ‘net beneficial’, but it didn’t have any robust data to back up that claim, nor had it been tested through consultation, in the opinion of the Court.

It was noted that a lot had changed since 2015. The government hadn’t demonstrated that it had listened to the strong criticisms voiced by trade unions and employment agencies about the measures, nor reflected on advice it had been given which said that changing the law would have negligible short-term benefits and could be harmful.

The High Court upheld ground one and decided not to express a view on the more contentious ground two – whether it was a breach of Article 11 of the ECHR.

So a victory for the unions and a setback for the government. But this might not be the end of the story. The government has a few options in response. One would be to appeal against the ruling, but it will have to persuade a higher court that it has reasonable grounds to do so. Even if it does issue an appeal, it may take many months for the case to be heard. The other option is for the government to fully consult and re-introduce it before Parliament. Again, that could take time.

For now, what does this mean for employers and staff? With effect from 10 August 2023, employment businesses will not be able to supply temporary workers to employers to cover those involved in industrial action. This means that any employers who were hoping to engage agency workers for this purpose in relation to strikes on or after 10 August will need to consider alternative options. Employers will be back in the same position as they were before July 2022. You won’t be able to use agency staff to cover for striking workers, or to cover the work of an employee covering the duties of another employee taking part in a strike or other industrial action.

In terms of alternatives, employers may still, for instance, continue to use pooled staff and move existing staff that are employed directly to cover for striking employees. Agency workers that are already working for you before strike action was announced may be used for the original purposes they were engaged. But they must not be reallocated to duties normally performed by colleagues taking part in industrial action. You can also replace any agency worker who leaves provided the replacement only does the same work as the departing worker.

In practice, for many employers, this might not make much of a difference. While it was a comfort to employers to have this option up their sleeves, often the ability to rely on it was curtailed by existing health and safety obligations, meaning employers must ensure that they use temporary workers with the necessary skills and/or qualifications. On top of this, some employers have been reluctant to engage agency workers to replace striking workers because of the risk of escalating an industrial dispute and negatively affecting any negotiations.

The ruling probably has a wider impact on other changes the government has in the works. For example, requiring minimum service levels to be maintained preventing strike action and eroding protection from dismissal for certain workers in the fields of health, transport, education, fire and rescue, border control, nuclear decommissioning and radioactive waste management.

Their recent success will no doubt give the unions confidence to challenge such laws if and when they come into force.

Robin Turnbull is a director at Anderson Strathern